Cases of parental death before protective measures – are affirmation of the Children Act’s adaptability?

Avaia Williams, Parklane Plowden

Two recent family court decisions explore whether the statutory threshold under the Children Act 1989 can be met when parental harm occurs before a child’s birth or after a parent’s death.

In Re W (A Minor) (Death of Mother Before Birth of Child: Threshold Criteria) [2024] EWFC 350, the mother died by suicide before her baby’s delivery, creating an unprecedented scenario of attributing harm to a deceased parent. The court concluded that threshold can encompass pre-birth actions. Likewise, in A Local Authority v C [2024] EWFC 336, the mother deliberately started a house fire resulting in her own death and serious injury to her child.

Both judgments emphasise a purposive interpretation of the Act, ensuring children harmed by a deceased parent are not left in a legal limbo, but remain capable of protection. However, in doing so, these judgments raise concerns about whether broadening the applicability of ‘pre-birth harm’ might lead to a clash with defined principles on autonomy, foetal non-personhood, and bodily rights.  

The full article has published in the April issue of Family Law.  Find out more or request a free 1-week trial of Family Law journal. Please quote: 100482

Read the full article here.